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HomeMy WebLinkAboutContract 29389 CITY SECRETARY CONSENT TO DEED OF TRUST LIEN UPON i F w ct'COnTRACT NO. _/ FORT WORTH MEACHAM INTERNATIONAL AIRPORT IMPROVED AND UNIMPROVED GROUND LEASE AGREEMENT WITH MANDATORY IMPROVEMENTS (LEASE SITE NOS.5-N,6-N,7-N,8-N,9-N AND 10-N) (CITY SECRETARY CONTRACT NO. 29135) This CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD ("Agreement")is made and entered into by and between the CITY OF FORT WORTH ("Lessor"), a home rule municipal corporation organized under the laws of the State of Texas; MEACHAM DEVELOPMENT, LLC ("Lessee"), a Texas limited liability company; and LEGACY BANK OF TEXAS ("Bank"), a Texas banking association. A. On or about September 26, 2003, Lessor and Lessee entered into City Secretary Contract No. 29135 (the "Lease"), a lease of improved and unimproved land at Fort Worth Meacham International Airport("Airport")known as Lease Site Nos. 5-N, 6-N, 7-N, 8-N, 9-N and 10-N(the "Leased Premises"). B. In order for Lessee to obtain certain financing related to Lessee's construction of improvements on the Leased Premises, Lessee and Bank desire Lessor to consent to the execution by Lessee of a Leasehold Deed of Trust lien on the Leased Premises (the"Deed of Trust") in favor of the Bank. NOW,THEREFORE,Lessor,Lessee and the Bank hereby agree as follows: 1. The statements set forth in the recitals above are true and correct and form the basis upon which Lessor, Lessee and the Bank have entered into this Agreement. The Lease is a public document on file in Lessor's City Secretary's Office and is incorporated herein by reference for all purposes. 2. Lessor hereby consents to the execution and delivery by Lessee to the Bank of the Deed of Trust, which is attached hereto as Exhibit"A". Lessor does not adopt, ratify or approve of any of the particular provisions of the Deed of Trust and does not grant any right, privilege or use to Lessee, Bank, or any successor in interest pursuant to the Deed of Trust that is different from or more extensive than any right,privilege or use granted to Lessee under the Lease. Notwithstanding anything contrary in the Deed of Trust, Lessee and the Bank acknowledge, understand and agree that Lessee and the Bank do not have any right to convey any interests in the Leased Premises greater than those granted specifically by the Lease. In the event of any conflict between the Deed Page 1 Consent to Deed Trust between ���,,,.��� �����/a Meacham Development,LLC and Legacy Bank of Texas of Trust and the Lease, the Lease shall control in all respects as to Lessor and as to Lessee's and the Bank's obligations to Lessor established by the Lease and/or this Agreement. In the event of any conflict between the Deed of Trust and this Agreement, this Agreement shall control. In the event of any conflict between this Agreement and the Lease,the Lease shall control. 3. In the event that Lessor is required by the Lease to provide any kind of written notice to Lessee with regard to the Leased Premises, including notice of breach or default by Lessee, Lessor shall also provide a copy of such written notice to the Bank. Lessor agrees that (i) the Bank may perform any of the obligations or requirements imposed on Lessee by the Lease in order to avoid a breach or default under the Lease by Lessee and (ii) Lessor will accept the Bank's performance the same as if Lessee had performed such obligations or requirements. 4. Lessor agrees and covenants that it will not exercise any rights it may have under the Lease to cancel or terminate the Lease or to force surrender of all or part of the Leased Premises unless it first has provided the Bank with written notice of its intent to exercise such any such right. The Bank shall have ten (10) calendar days from the date it receives such notice to cure any monetary default under the Lease and thirty (30) calendar days from the date it receives such notice to cure any other default under the Lease to Lessor's reasonable satisfaction in order to avoid such cancellation, termination or surrender; provided, however, that if the Bank, in good faith and after diligent and continuous efforts to remedy any non-monetary default under the Lease, cannot cure such default within thirty (30) calendar days, it shall notify Lessor in writing and Lessor and the Bank shall negotiate in good faith a reasonable amount of additional time to cure such default. 5. Lessee agrees that it will not request to or consent to any future modifications, amendments or assignments of the Lease without first receiving the Bank's written consent thereto and providing a copy of such written consent to Lessor. Lessee understands and agrees that any such consent granted by Lessor without Bank's advance written consent shall be void and specifically releases, holds harmless and agrees to indemnify Lessor for any damages that may arise as a result of any such consent. 6. In the event that Bank undertakes to enforce its rights to any collateral granted by the Deed of Trust on account default by Lessee under the Deed of Trust, Lessor will cooperate with the Bank in its efforts to assemble and/or remove any personal property of Lessee on the Premises. The Bank hereby agrees to repair any damages at or to the Airport, including the Leased Premises, caused by or incident to such removal. 7. As a condition precedent to the effectiveness of this Agreement, Lessee agrees and covenants that it will endorse all insurance policies required by the Lease to name both Lessor and the Bank as additional insureds and to cover all public risks related to the leasing, use, occupancy, maintenance, existence or location of the Leased Premises. Notwithstanding anything to the contrary in the Deed of Trust, the Bank hereby agrees and covenants that any and all proceeds payable under the terms of such insurance policies shall first be applied to cover the replacement of all facilities and improvements on the Leased Premises and to satisfy fully the terms and conditions Page 2 Consent to Deed of Trust between Meacham Development,LLC and Legacy Bank of Texas CITY *Cftay of the Lease. Payment of such proceeds shall apply secondarily to secure any of Lessee's indebtedness to the Bank. 8. Subject to Sections 4 and 6 of this Agreement, Lessor may take all action available to it under the Lease, at law or in equity in order to protect its interests, including, but not limited to, cancellation of Lessee's interest as provided by the Lease and in accordance with this Agreement. 9. The Bank agrees that it promptly will notify Lessor in writing when the Bank has released its rights under the Deed of Trust. This Agreement will automatically terminate on the earlier of(i) the date as of which the Bank releases such rights or(ii)the date upon which the Lease expires or is terminated. 10. The Bank may not sell or otherwise transfer in any way any of the Bank's or Lessee's rights or interest in the Leased Premises unless Lessor consents to such sale or transfer in the form of a written agreement approved in advance by Lessor's City Council. 11. Notices to the Bank required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (i) hand-delivered to the Bank, its agents, employees, servants or representatives, or (ii) deposited in the United States Mail, certified, return receipt requested,addressed as follows: Legacy Bank of Texas 1105 W. 15th Street. Plano,TX 75075 Attn: Collateral Department 12. The parties hereto understand and agree that upon expiration or termination of the Lease, all structures, improvements and fixtures on the Leased Premises, and any items permanently attached to any such structure, fixture or improvement, will become the sole property of Lessor, free and clear of all liens, including the Deed of Trust, except for improvements of a non-permanent nature, all trade fixtures, machinery, furnishings and other items may specifically be removed from the Leased Premises in accordance with the Lease. In the event-that the Lease expires or is terminated, Lessee and the Bank covenant and agree that nothing herein shall obligate Lessor to assume in any way Lessee's indebtedness to the Bank. 13. This Agreement may not be withdrawn, amended or modified except by a written agreement executed by the parties hercto and approved by Lessor's City Council. Lessee and Bank covenant and agree that they will not amend the Deed of Trust, or assign any rights and/or obligations thereunder,without the prior written consent of Lessor. 14. This Agreement shall be construed in accordance with the laws of the State of Texas. Venue for any action arising under the provisions of this Agreement shall lie in state courts located in Tarrant County, Texas or in the United States District Court for the Northern District of Texas, Page 3 W Consent to Deed of Trust between Meacham Development,LLC and Legacy Bank of Texas Fort Worth Division. 15. This written instrument, including any documents attached hereto and/or incorporated herein by reference, contains the entire understanding and agreement between Lessor, Lessee and Bank as to the matters contained herein. Any prior or contemporaneous oral or written agreement concerning such matters is hereby declared null and void to the extent in conflict with this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples as of the latest date below: CITY OF RT WORTH: ATTEST:;k By: By: 6�1 (2 / Marc Ott Gloria Pearso Assistant City Manager City Secretary Date: 1 �0 3 APPROVED AS TO FORM AND LEGALITY: By: // V Peter Vaky Assistant City Attorney M&C: T:13720 12-09-03 MEACHAM DEVELOPMENT, LLC ATTEST: a Te ' li "ted liability company: F r By: By: a2zi::7-- Namel�ow VY)GLUJ'� Title: Date: Page 4 Consent to Deed of Trust between � Meacham Development,LLC and Legacy Bank of Texas ! r . r LEGACY BANK OF TEXAS, ATTEST: a Texas banking association: By:- By: Name: Title: SE►j Date: Page 5 Consent to Deed of Trust between Meacham Development,LLC and Legacy Bank of Texas STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Marc Ott, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this �� day 2003. tos `Y P a: ROSELLA BARNES �► NOTARY PUBLICj�jcs-�' State of Texas m.Exp.03-31-2005 Notary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared pb ,tj/� A known to me to be the person whose name is subscribed to the foregoing instrument, and ackn wledged to me that the same was the act of Meacham Development, LLC and that s/he executed the same as the act of Meacham Development, LLC for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER.MY HAND AND SEAL OF OFFICE this /7/A day )2003. Y­_V�•; SUSIE M FOWLER f�% NOTARY PUBLIC State of Texas Notary Public in an for the State of Texas �' �f!Comm. Exp. 11-30-2006 NOUR, UK. STATE OF TEXAS § COUNTY OF COLLIN § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared --5e1f j j,�(yy , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Legacy Bank of Texas and that s/he executed the same as the act of Legacy Bank of Texas for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 92003. Notary Public in and for the State of Texas NICHOLAS JAMES PATTON Notary Public State of Texas �`7rEOFr Comm. Expires 10-29-2007 Exhibit "A" After recording,return to: LEGACY BANK OF TEXAS 1105 W. 15th Street Plano,Texas 75075 Attn:Collateral Department LEASEHOLD DEED OF TRUST (With Security Agreement and Assignment of Rents) STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OFTARRANT § THAT THE UNDERSIGNED, MEACHAM DEVELOPMENT LLC,a Texas limited liability company (hereinafter called "Grantor," whether one or more), whose mailing address is 5718 Airport Freeway, Fort Worth, Texas 76117, Attn: Robert M. McMurrey, for and in consideration of the debt hereinafter described, has granted, bargained, sold, transferred, assigned, and conveyed, and by these presents does grant, bargain, sell, transfer, assign and convey, in trust unto Jeff G. Chase, Tom Covert, and Steven M. Pipes, each a trustee and each of whom may act alone without consent or joinder of the other with the full trust power granted herein, and unto his, her or their successors or substitutes in the trust hereby created (such trustee and any successors or substitutes being hereinafter collectively called "Trustee"), and unto the Trustee's assigns, forever, all and singular the property of Grantor, both real and personal,situated in the County of Tarrant and State of Texas,which is described as follows: A leasehold estate pursuant to Grantor's right, title, and interest under that certain ground lease entitled "Fort Worth Meacham International Airport Improved and Unimproved Ground Lease Agreement with Mandatory Improvements" dated September 26, 2003 executed by and between Grantor and the City of Fort Worth, Texas (said lease agreement, together with subsequent amendments being hereinafter collectively referred to as the "Ground Lease"), which Ground Lease covers certain real property located in Tarrant County, Texas, as more particularly described on Exhibit "A" attached hereto and made a part hereof by this reference for all purposes; together with all of Grantor's options, rights or first refusal and expansion rights under the Ground Lease; and together with all Grantor's right, title, and interest in improvements thereon or hereafter placed thereon and with all Grantor's right, title, and interest in equipment, fixtures and articles of personal property now or hereafter attached to or used in and about the buildings and other improvements located upon the property; including, but not limited to, all electrification equipment and power lines, whether owned individually or jointly with others, all heating, lighting, refrigeration, plumbing, ventilating, incinerating, water heating, cooking, radio, communications, electrical and air conditioning equipment, all appliances, furniture, doors, windows, window screens, sprinklers, disposals, range hoods, tables, chairs, drapes, rods, bookcases, cabinets, sprinklers, hoses, tools, television antenna systems, speakers, electrical wiring, pipe and floor coverings, signs; all renewals or replacements thereof or in substitution therefor, whether or not the same are or shall be attached to the property in any manner; all building materials and equipment now or hereafter delivered to the property and intended to be installed therein; all plans and specifications for the property (including, without limitation, all designs for the airport hangar and related facilities developed or to be developed on the property); all deposits, funds, accounts, rights, instruments, documents, general intangibles (including trademarks, trade names and symbols used in connection therewith), and notes or chattel paper arising from or by virtue of any transactions related to the property; all permits, licenses, certificates, and other rights and privileges obtained in connection with the property; all proceeds arising from or by virtue of the sale, lease or other disposition of any of the real or personal property described herein; all proceeds W:4104%17440EEDTRSQ.wpd 1 - /'•2r 2r Ii���I �,�`�[f`�'--�:��� 1 (including premium refunds) payable or to be payable under each policy of insurance relating to the property; all proceeds arising from the taking of all or a part of the real property or any rights appurtenant thereto, for any public or quasi-public use under any law, or by right of eminent domain, or by private or other purchase in lieu thereof; and all other interest of every kind and character which Grantor now has or at any time hereafter acquires in and to the above-described real and personal property and all property which is used or useful in connection therewith, including rights of ingress and egress and all reversionary rights or interests of Grantor with respect to such property, unto the Trustee,his successors in this trust and his assigns forever. For purposes of this Deed of Trust, it is hereby agreed that to the extent permitted by law all of the foregoing personal property and fixtures (hereinafter collectively referred to as 'Collateral") are to be deemed and held to be a part of and affixed to the real property. This conveyance shall include and the lien, security interest and assignment created hereby shall encumber and extend to all other, further or additional title, estates, interest or rights which may exist now or at any time be acquired by Grantor in or to the property demised under the Ground Lease including Grantor's rights, if any, to purchase the property demised under such Ground Lease, or such additional real property if such right or option is so provided in the Ground Lease and, if fee simple title to any of such property shall ever become vested in Grantor, such fee simple interest shall be encumbered by this Deed of Trust in the same manner as if Grantor had fee simple title to such property as of the date of execution hereof. The foregoing described real and personal property is hereinafter collectively called the"Mortgaged Property". TO HAVE AND TO HOLD the Mortgaged Property unto the Trustee and his or her successors or substitutes forever, Grantor hereby binds itself and its successors and assigns to warrant and forever defend the title to the Mortgaged Property unto the Trustee and his or her successors and substitutes, against every person lawfully claiming or to claim the same or any part thereof. This conveyance is made in trust, however, to secure and enforce the payment of that certain Promissory Note (hereinafter called the"Note"), dated of even date herewith, executed by Grantor, payable to the order of LEGACY BANK OF TEXAS (hereinafter called "Beneficiary"), whose address is Park Cities Banking Center, 7031 Snider Plaza, University Park, Texas 75205, Attn: Jeff Hickey, in the stated principal amount of TWO MILLION SEVEN HUNDRED NINETY THOUSAND AND NO/DOLLARS ($2,790,000.00), bearing interest, being payable and maturing as more particularly set forth therein. This Deed of Trust shall secure, in addition to the Note, all funds hereafter advanced by Beneficiary to or for the benefit or account of Grantor, as contemplated by any covenant or provision herein contained or contained in the Note or any other document evidencing, goveming, guaranteeing or securing the indebtedness evidenced by the Note, and all other indebtedness, of whatever kind or character, owing or which may hereafter become owing by Grantor to Beneficiary, whether such indebtedness is evidenced by note, open account, overdraft, endorsement, surety agreement, guaranty,or otherwise, it being contemplated that Grantor may hereafter become indebted to Beneficiary for further sums, and any security given or pledged in connection with any such other indebtedness or hereafter owing by Grantor to Beneficiary shall likewise secure all indebtedness evidenced by the Note and this Deed of Trust. All indebtedness secured hereby shall be payable at Beneficiary's address above, and, unless otherwise provided in the instrument evidencing such indebtedness, shall bear interest at the same rate per annum as the Note bears, from the date of accrual of such indebtedness until paid. If the Note or any other indebtedness secured hereby shall be collected by legal proceedings, whether through a probate or bankruptcy court or otherwise, or shall be placed in the hands of an attorney for collection following default or after maturity, whether matured by the expiration of time or by any option given to the Beneficiary to accelerate the maturity, Grantor agrees to pay Beneficiary`s reasonable attorney's and collection fees, and such fees shall be a part of the indebtedness secured hereby. To better secure payment of such indebtedness, Grantor does hereby covenant, warrant and represent to and agree with Beneficiary and with the Trustee as follows: 1. Address. Grantor's mailing address as shown in the first paragraph hereof is true and correct. W:W 104\17440EED'rRSQ.wpd -2- 2. Payment. Grantor will pay all of the indebtedness secured hereby, together with the interest thereon, when the same shall become due, in accordance with the terms of the Note or any other instrument evidencing, securing, or pertaining to such indebtedness, or evidencing any renewal or extension of such indebtedness, or any part thereof, and further, Grantor shall punctually and properly perform all of Grantor's covenants, obligations, and liabilities hereunder and under any other security agreement, mortgage, deed of trust, collateral pledge agreement, contract, assignment, loan agreement or any other instrument or agreement of any kind now or hereafter existing as security for, executed in connection with,or related to the indebtedness,or any part thereof. 3. Title. Grantor has in its own right good, and indefeasible title, except as otherwise provided herein, to the Mortgaged Property which is free from encumbrance superior to the indebtedness hereby secured, except as otherwise provided herein, and has full right to make this conveyance, and with respect to each Grantor who is an individual,no part of the Mortgaged Property constitutes any part of his business or residential homestead. 4. Insurance. Grantor will keep all insurable Mortgaged Property insured against the risks covered by policies of fire and extended coverage insurance and such other risks as Beneficiary may require, such insurance to be written in form and with companies acceptable to Beneficiary, with loss made payable to Beneficiary by mortgagee clauses of standard form, and will deliver the policies of insurance or certificates thereof to Beneficiary promptly as issued; and in case Grantor fails to do so, Beneficiary, at its option, may procure such insurance at Grantor's expense. In the event the Mortgaged Property, or any portion thereof, lies within a flood plain, a flood prone area or any designated flood hazard area, Grantor shall, in addition to the foregoing insurance, obtain and maintain flood insurance in forth and with companies acceptable to Beneficiary, with loss made payable to Beneficiary by mortgagee clauses of standard forth. All renewal and substitute certificates of insurance shall be delivered at the office of Beneficiary, premiums paid, at least ten (10) days before termination of policies theretofore delivered to Beneficiary. If renewal policies or certificates are not so delivered to Beneficiary, Beneficiary, while not obligated, may obtain the required insurance on behalf of Grantor (or insurance in favor of Beneficiary alone) and pay the premiums thereon. Beneficiary may rely upon any cancellation notice from any insurance carrier of any policy of insurance furnished pursuant to this provision and may, but shall not be obligated, to obtain the required insurance as authorized herein and such coverage shall continue in the company selected by Beneficiary, and Grantor shall pay on demand the premiums for such coverage notwithstanding the fact that Grantor may have procured separate or additional coverage to that obtained by Beneficiary. In case of loss, (i) if Grantor is in default hereunder, Beneficiary, at its option, shall be entitled to receive and retain the proceeds of the insurance policies, applying the same to the indebtedness secured hereby or Beneficiary may apply such proceeds to restore the Mortgaged Property, and (ii) if Grantor is not in default hereunder, Grantor may, at its option, apply such proceeds to the indebtedness secured hereby or apply such proceeds to the restoration of the Mortgaged Property. If Grantor elects to apply such proceeds to the restoration of the Mortgaged Property, such restoration shall be promptly completed in accordance with plans and specifications approved by Beneficiary, and the costs and expenses thereof,to the extent they exceed the proceeds of the insurance policies,shall be bome by Grantor. 5. Taxes. Grantor will pay all taxes and assessments against or affecting the Mortgaged Property as the same become due and payable (unless such payments are made by Beneficiary as hereinafter provided), and, if Grantor fails to do so, the Beneficiary may pay them (but shall have no obligation to do so), together with all costs and penalties thereon, at Grantor's expense, provided however, that, upon strict compliance by Grantor of the requirements stated below, Grantor may in good faith, in lieu of paying such taxes and assessments as they become due and payable, by appropriate proceedings, contest the validity thereof, and pending such contest Grantor shall not be deemed in default hereunder because of such nonpayment, if(i) prior to delinquency of the asserted tax or assessment, Grantor furnishes the Beneficiary an indemnity bond, conditioned that such tax or assessment with interest, cost and penalties be paid as therein stipulated secured by a deposit in cash, or security acceptable to Beneficiary, or with surety acceptable to Beneficiary, in the amount of the tax or assessment being contested by Grantor, and a reasonable additional sum to pay all possible costs, interest and penalties imposed or incurred in connection therewith; (ii) Grantor promptly pays any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest thereon, before such judgment becomes final; and (iii) in any event, each such contest shall be concluded and the tax, assessment, penalties, interest and costs shall be paid prior to the date such judgment becomes final or any writ or order is issued under which the Mortgaged Property may be sold pursuant to such judgment. W:W 104\I744\DEED rM2.wpd -3 6. Reserve Funds. At the request of Beneficiary, Grantor shall create a fund or reserve for the payment of all insurance premiums, taxes, and assessments against or affecting the Mortgaged Property by paying to Beneficiary, on the first day of each calendar month prior to the maturity of the Note, a sum equal to the premiums that will next become due and payable on the hazard insurance policies covering the Mortgaged Property, or any part thereof, plus taxes and assessments next due on the Mortgaged Property, or any part thereof, as estimated by Beneficiary, less all sums paid previously to Beneficiary therefor, divided by the number of months to elapse before one month prior to the date when such premiums, taxes and assessments will become delinquent, such sums to be held by Beneficiary, without interest, unless interest is required by applicable law, for the purposes of paying such premiums, taxes and assessments. Any excess reserve shall, at the discretion of Beneficiary, be credited by Beneficiary on subsequent reserve payments or subsequent payments to be made on the Note by the maker thereof, and any deficiency shall be paid by Grantor to Beneficiary on or before the date when such premiums, taxes, and assessments shall become delinquent. Transfer of legal title to the Mortgaged Property shall automatically transfer title to all sums deposited with Beneficiary under the provisions hereof or otherwise. 7. Condemnation. All judgment, decrees and awards for injury or damage to the Mortgaged Property, and all awards pursuant to proceedings for condemnation thereof, are hereby assigned in their entirety to Beneficiary, who shall apply the same to the indebtedness secured hereby first to interest accrued to date of receipt of the condemnation proceeds and then to principal, provided however, in the event Grantor is not in default hereunder, Grantor may apply same to the indebtedness secured hereby or may apply same to restore the Mortgaged Property, to the extent, but only to the extent, that such restoration is commercially feasible. Beneficiary is hereby authorized, in the name of Grantor, to execute and deliver valid acquittances for, and to appeal from, any such award, judgment or decree. In the event Beneficiary,as a result of any such judgment,decree or award, believes that the payment or performance of any indebtedness or obligation secured by this Deed of Trust is impaired, Beneficiary may, without notice, declare all of the indebtedness secured hereby immediately due and payable. 8. Defense of Title. If,while this trust is in force,the title of the Trustee to, or the interest of Beneficiary in, the Mortgaged Property hereby conveyed or any part thereof, shall be endangered or shall be attacked directly or indirectly, Grantor hereby authorizes Beneficiary, at Grantor's expense, to take all necessary and proper steps for the defense of such title or interest, including the employment of counsel, the prosecution or defense of litigation, and the compromise or discharge of claims made against such title or interest. At any time any law shall be enacted imposing or authorizing the imposition of any tax upon this Deed of Trust, or upon any rights, titles, liens, or security interests created hereby,or upon the Note, or any part thereof, Grantor shall immediately pay all such taxes, or cause same to be paid or reimburse Beneficiary for the payment of same immediately upon written notice from Beneficiary. Grantor shall at any time and from time to time, furnish promptly, upon request, a written statement or affidavit, in such form as may be required by Beneficiary, stating the unpaid balance of the Note, and stating that there are no offsets or defenses against full payment of the Note and performance of the terms hereof, or if there are any such offsets and defenses, specifying them. 9. Reimbursement. If, in pursuance of any covenant contained herein or in any other instrument executed in connection with the loan evidenced by the Note or in connection with any other indebtedness secured hereby, Beneficiary shall expend any money chargeable to Grantor or subject to reimbursement by Grantor under the terms of such covenant or agreement,Grantor will repay the same to Beneficiary immediately upon demand at the place where the Note or other indebtedness secured hereby is payable, together with interest thereon at the rate of interest payable under the Note or on account of such other indebtedness in the event of a default thereunder from and after the date of Beneficiary's expenditure. The sum of each such payment shall be added to the indebtedness hereby secured and thereafter shall form a part of the same, and it shall be secured by this Deed of Trust and by subrogation to all of the rights of the person or entity receiving such payment. 10. Maintenance of Property. Grantor will keep every part of the Mortgaged Property in first-class condition and presenting a first-class appearance, making promptly all repairs, renewals and replacements necessary to such end, and doing promptly all else necessary to such end; but Grantor will discharge all claims for labor performed and material furnished therefor, and will not suffer any lien of mechanics or materialmen to attach to any part of the Mortgaged Property; and Grantor will reasonably guard every part of the Mortgaged Property from removal, destruction WA4104\1744\DEEDTRSv2.wpd -4- '-J p' f! v�a�gJ J U .� and damage, and will not do or suffer to be done any act whereby the value of any part of the Mortgaged Property may be lessened. 11. Prohibition of Transfer. The sale, transfer, disposition or encumbrance, whether by operation of law or otherwise, of all or any part of the Mortgaged Property (other than items of personalty which have become obsolete or worn beyond practical use and which have been replaced by adequate substitutes having a value equal to or greater than the replaced items when new) without the written consent of Beneficiary shall constitute a default hereunder. Grantor shall not grant any easement whatever with respect to any of the Mortgaged Property without the joinder therein of Beneficiary or rent or lease any of the Mortgaged Property for any purpose whatever without the prior written consent of Beneficiary. In the event Grantor is a corporation or a limited liability company, it agrees that the sale, conveyance, hypothecation, transfer or disposition of more than ten percent (10%) of its issued and outstanding capital stock or ownership interests, without the prior written consent of Beneficiary, shall constitute a default; or, that in the event Grantor is a limited or general partnership, or a joint venture, a change of any general partner or any joint venturer, either voluntarily or involuntarily, or the sale, conveyance, transfer, disposition or encumbrance of any such general partner or joint venture interests, without the prior written consent of Beneficiary, shall constitute a default. In the event Beneficiary should consent to any sale or conveyance of the Mortgaged Property,Grantor will not sell all or any portion of the Mortgaged Property unless the purchaser, as a part of the consideration, either (a) expressly agrees to assume the payment of the indebtedness hereby secured or (b) expressly agrees that the title and rights of purchaser are and shall remain unconditionally subject to all of the terms of this Deed of Trust for the complete fulfillment of all obligations of the Grantor hereunder, and the deed effecting such transfer shall expressly set forth such agreement of the purchaser. 12. No Discharge Upon Transfer, if the ownership of the Mortgaged Property or any part thereof becomes vested in a person other than Grantor, Beneficiary may, without notice to Grantor, deal with such successor or successors in interest with reference to this Deed of Trust and to the indebtedness hereby secured in the same manner as with Grantor without in any way vitiating or discharging Grantor's liability hereunder or upon the indebtedness hereby secured. No sale of the Mortgaged Property, and no forbearance on the part of Beneficiary, and no extension of the time for the payment of the indebtedness hereby secured, given by Beneficiary, shall operate to release, discharge, modify, change or affect the original liability of Grantor or the liability of any guarantors or sureties of Grantor, either in whole or in part. 13. Default in Payment or Performance. Grantor shall be in default hereunder upon the occurrence of an "Event of Default" as such term is defined in that certain Construction Loan Agreement (the 'Loan Agreement") of even date herewith by and between Grantor and Beneficiary. Upon the occurrence of any such default, Beneficiary, at its option, without notice, may pursue any rights and remedies it may have hereunder or at law, or in equity, including, without limitation, filing suit on the Note and/or enforcing the power of sale granted herein, and Beneficiary may, without limitation, declare the entire indebtedness secured hereby immediately due and payable, whereupon it shall be so due and payable. 14. Sale by Trustee. If Grantor pays the Note and other debt that may be owing, or causes same to be paid, and keeps and performs each and every covenant, condition and stipulation contained herein and in the Note, then this Deed of Trust shall become null and void; otherwise to be and remain in full force and effect. if there is a default hereunder, then the Note, together with all other sums secured hereby, shall at the option of the Beneficiary, become at once due and payable without demand, notice or judicial hearing except as may be required by law (such requirement of law being hereby waived to the extent permitted by law), and the Trustee, when requested to do so by the Beneficiary after such default, shall sell the Mortgaged Property, at public auction, to the highest bidder, for cash at the County Courthouse of the County in Texas in which the Mortgaged Property or any part thereof is situated as herein described in the area in such Courthouse designated for real property foreclosure sales in accordance with applicable law (or in the absence of such designation, in the area set forth in the notice of sale hereinafter described), between the hours of 10:00 o'clock A.M. and 4:00 o'clock P.M., on the first Tuesday of any month, after giving notice of the time, place and terms of said sale, and of the property to be sold in accordance with applicable laws in the State of Texas in effect at the time such notice is given, provided however, such sale shall begin at the time stated in such notice or within three (3) hours thereafter. W:W 1 04\1 744\DEEDTRSv2.Wpd -S- Notice of such proposed sale shall be given by posting written notice of the sale at the courthouse, and by filing a copy of the notice in the office of the county clerk of the county in which the sale is to be made at least twenty-one (21) days preceding the date of the sale. If the property to be sold is situated in more than one county, a notice shall be posted at.the courthouse and filed with the county clerk of each county in which the property to be sold is situated. In addition, Beneficiary shall, at least twenty-one (21) days preceding the date of sale, serve written notice of the proposed sale by certified mail on each debtor obligated to pay the debt secured hereby according to the records of Beneficiary. Service of such notice shall be completed upon deposit of the notice, enclosed in a postpaid wrapper, properly addressed to such debtor at the most recent address as shown by the records of Beneficiary, in a post office or official depository under the care and custody of the United States Postal Service. The affidavit of any person having knowledge of the facts to the effect that such service was completed shall be prima facie evidence of the fact of service. Any notice that is required or permitted to be given to Grantor may be addressed to Grantor at Grantor's address as stated above. Any notice that is to be given by certified mail to any other debtor may, if no address for such other debtor is shown by the records of Beneficiary,be addressed to such other debtor at the address of Grantor as is shown by the records of Beneficiary. The Trustee may appoint any attorney-in-fact or agent to act in his or her stead as Trustee to perform all duties of the Trustee authorized herein. Grantor authorizes and empowers the Trustee to sell the Mortgaged Property, together or in lots or parcels, as the Trustee shall deem expedient; to receive the proceeds of said sale; and to execute and deliver to the purchaser or purchasers thereof good and sufficient deeds of conveyance thereto by fee simple title, with covenants of general warranty, and Grantor binds himself or herself to warrant and forever defend the title of such purchaser or purchasers. The proceeds of such sale shall be applied in the following order: (a) to the payment of all necessary costs and expenses incident to the execution of said trust, including a reasonable fee to the Trustee not exceeding five percent (5%) of the gross proceeds of the sale of the Mortgaged Property; (b) the indebtedness secured hereby, discharging first that portion of the indebtedness arising under the covenants or agreements herein contained and not evidenced by the Note; (c) the remainder,if any,to Grantor or such other person or persons entitled thereto by law. 15. Apaointment of Receiver. Upon the commencement of any action to enforce the lien herein given, Beneficiary shall have the additional right to have a court of competent jurisdiction appoint a receiver to take possession of the Mortgaged Property. This provision is a right created by this contract and is cumulative of, and shall not affect in any way,the right of the Beneficiary to the appointment of a receiver given the Beneficiary by law. 16. Election of Remedies. Upon the occurrence of a default hereunder, Beneficiary shall have the option to proceed with foreclosure in satisfaction of such delinquent or then matured debt, either through the courts or by directing the Trustee to proceed as if under a foreclosure, conducting the sale as herein provided and without declaring the whole debt due, and provided that if said sale is made because of such default, such sale may be made subject to the unmatured part of the Note and debt secured by this Deed of Trust; such sale, if so made, shall not in any manner affect the unmatured part of the debt secured by this Deed of Trust, it being the purpose to provide for a foreclosure and the sale of the Mortgaged Property for any matured portion of said debt, without exhausting the power of foreclosure, and to sell the Mortgaged Property for any other part of said debt whether matured at the time or subsequently maturing. 17. Prereauisites to Sale. In case of any sale hereunder, all prerequisites to the sale shall be presumed to have been performed, and in conveyance given hereunder, all statements of facts or other recitals made therein as to any of the following, shall be taken in all courts of law or equity as prima facie evidence that the facts so stated or recited are true; i.e., the nonpayment of money secured; the request to the Trustee to enforce this trust; the proper and due appointment of any substitute trustee; the advertisement of sale or time, place and manner of sale; or any other preliminary fact or thing. Trustee shall not be liable for any action taken or omitted to be taken by Trustee in good faith and reasonably believed to be within the discretion or power conferred upon Trustee by this Deed of Trust and shall be answerable only for losses occurring through his or her gross negligence or willful misconduct. Grantor agrees to save and hold the Trustee and Beneficiary harmless from all loss and expense, including reasonable attorney's fees, costs W:W 104\1744\DEEDTRSv2.wpd -6- , Jq:.,I '1 K-1 j) : o n np U qn of a title search or abstract, and preparation of survey, incurred by reason of any action, suit or proceeding (including an action, suit or proceeding to foreclose or to collect the debt secured hereby) in and to which Trustee or Beneficiary may be or become a party by reason hereof, including, but not limited to, condemnation, bankruptcy and administration proceedings, as well as any other proceeding wherein proof of claim is required by law to be filed or in which it becomes necessary to defend or uphold the terms of this Deed of Trust, and in each such instance, all money paid or expended by Trustee or Beneficiary,together with interest thereon from date of such payment at the rate set forth in said Note or at the legal rate, whichever is higher, shall be so much additional indebtedness secured hereby and shall be immediately due and payable by Grantor. 18. Substitute Trustee. Beneficiary may, at its option, appoint a successor or substitute Trustee without any formality or notice (except as may be required by law) other than a designation in writing of such appointment to such successor or substitute trustee who shall thereupon become vested with and succeed to all the powers and duties named herein, the same as if the successor or substitute had been named original Trustee herein; such right to appoint a successor or substitute trustee shall exist as often and whenever the Beneficiary desires. If the Beneficiary is a corporation, it may act through any authorized officer or by any agent or attorney-in-fact properly authorized by any such officer. 19. No Waiver. The exercise of any option given under the terms of this Deed of Trust shall not be considered a waiver of the right to exercise any other option herein; and the filing of a suit to foreclose this Deed of Trust, either on any matured portion of the debt or for the whole debt, shall never be considered an election of remedies so as to preclude foreclosure under power of sale after a dismissal of the suit; nor shall the filing of the necessary notices for foreclosure,as provided in this Deed of Trust,preclude the prosecution of a later suit thereon. 20. Creation of Landlord - Tenant Relationship. Any sale of the Mortgaged Property under this Deed of Trust shall, without further notice, create the relation of landlord and tenant at sufferance between the purchaser at such sale as landlord, and Grantor as tenant; and upon failure to surrender possession thereof, Grantor may be removed by a writ of possession at suit by the purchaser. 21. Disaffirm Encumbrances. The purchaser at any trustee's or foreclosure sale hereunder may disaffirm any easement granted, or rental, lease or other contract made, in violation of any provision of this Deed of Trust, and may take immediate possession of the Mortgaged Property free from, and despite the terms of, such easement or rental, lease or other contract. 22. Beneficiary May Bid. Beneficiary may bid and become the purchaser of all or any part of the Mortgaged Property at any Trustee's or foreclosure sale hereunder. 23. Rieht of Entry The Grantor agrees, to the full extent that Grantor lawfully may, that in case one or more of the defaults hereunder shall have occurred and shall not have been remedied, then, and in every such case, the Beneficiary shall have the right and power to enter into and upon and take possession of all or any part of the Mortgaged Property in the possession of the Grantor, Grantor's successors and assigns; and, holding the same, the Beneficiary may use, administer, manage, operate and control the Mortgaged Property and conduct the business thereof to the same extent as the Grantor, Grantor's successors or assigns, might at the time do and may exercise all rights and powers of the Grantor, in the name, place and stead of the Grantor, or otherwise as the Beneficiary shall deem best; and in the exercise of any of the foregoing rights and powers Beneficiary shall not be liable to Grantor for any loss or damage thereby sustained unless due solely to the willful misconduct or gross negligence of Beneficiary. 24. Release. Any part of the Mortgaged Property may be released by the Beneficiary without affecting the lien, security interest and assignment hereof against the remainder. The lien, security interest and other rights granted hereby shall not affect or be affected by any other security taken for the same indebtedness or any part thereof. The taking of additional security, or the extension or renewal of the indebtedness secured hereby or any part thereof, shall not release or impair the lien, security interest and other rights granted hereby,or affect the liability of any endorser, guarantor or surety, or improve the right of any permitted junior lien holder; and this Deed of Trust, as well as any instrument given to secure any renewal or extension of the indebtedness secured hereby, or any part thereof, shall be WA4104\1744\DEEDTRSv2.wpd -7' �a� 0,- i',�• vJU'L \� and remain a first and prior lien, except as otherwise provided herein, on all of the Mortgaged Property not expressly released until the indebtedness secured hereby is completely paid. 25. Waiver of Marshalling. Etc To the extent that Grantor may lawfully do so, Grantor agrees that Grantor shall not assert and hereby expressly waives, any right under any statute or rule of law pertaining to the marshalling of assets, the exemption of homestead, the administration of estates of decedents, or any other matter whatever to defeat, reduce or affect the right of Beneficiary,under the terms of this Deed of Trust, to sell the Mortgaged Property for the collection of the indebtedness secured hereby (without any prior or different resort for collection) or the right of Beneficiary,under the terms of this Deed of Trust, to the payment of such indebtedness out of the proceeds of sale of the Mortgaged Property in preference to every other person and claimant whatsoever. Grantor expressly waives and relinquishes any right or remedy which it may have or be able to assert by reason of the provisions of Chapter 34 of the Business and Commerce Code of the State of Texas, pertaining to the rights and remedies of sureties. Grantor further waives, to the extent permitted by law, the benefit of all laws now existing or that hereafter may be enacted providing for (i) any appraisement before sale of any portion of the Mortgaged Premises, commonly known as Appraisement Laws, and (ii) the benefit of all laws that may be hereafter enacted in any way extending the time for the enforcement of the collection of the debt secured hereby or creating or extending a period of redemption from any sale made in collection of said debt,commonly known as Stay Laws and Redemption Laws. 26. Rents, Royalties. Etc All of the rents, royalties, issues, profits, revenue, income and other benefits derived from the Mortgaged Property or arising from the use or enjoyment of any portion thereof or from any lease or agreement pertaining thereto (hereinafter called the "Rents and Profits") are hereby absolutely and unconditionally assigned, transferred, conveyed and set over to Beneficiary, to be applied by Beneficiary in payment of the principal and interest and all other sums payable on the Note, and any other indebtedness secured hereby. Prior to the occurrence of any default hereunder, Grantor shall collect and receive all Rents and Profits as trustee for the benefit of Beneficiary, and Grantor shall apply the funds so collected first to the payment of the principal and interest and all other sums then due and payable on the Note and payment of all other indebtedness secured hereby and then due and payable, and thereafter, so long as no default hereunder has occurred, the balance shall be distributed to the account of Grantor. Grantor will not (i) execute an assignment of any of its right, title or interest in the Rents and Profits, or (ii) terminate or consent to the cancellation or surrender of any lease of the Mortgaged Property or any part thereof, now or hereafter existing, or (iii) modify any lease of the Mortgaged Property or any part thereof so as to shorten the unexpired term thereof or so as to decrease the amount of the rent payable thereunder, or (iv) accept prepayment of any installments of rent to become due under any of such leases in excess of one month, or (v) in any other manner impair the value of the Mortgaged Property or the security of this Deed of Trust. Grantor will not execute any lease of all or any substantial portion of the Mortgaged Property except for actual occupancy by the lessee thereunder, and will at all times promptly and faithfully perform, or cause to be performed, each covenant, condition and agreement contained in each lease of the Mortgaged Property now or hereafter existing, on the part of lessor thereunder to be kept and performed. Grantor shall furnish to Beneficiary, within ten (10) days after a request by Beneficiary to do so, a written statement containing the names of all lessees of the Mortgaged Property, the terms of their respective leases, the spaces occupied and the rentals payable thereunder. 27. No Subordinate Mortgage. Grantor will not, without the prior written consent of Beneficiary, execute or deliver any pledge, security agreement, mortgage or deed of trust covering all or any portion of the Mortgaged Property (hereinafter called "Subordinate Mortgage"). In the event of consent by Beneficiary to the foregoing or in the event the foregoing prohibition is determined by a court of competent jurisdiction to be unenforceable by the provisions of any applicable law, Grantor will not execute or deliver any Subordinate Mortgage unless there shall have been delivered to Beneficiary not less than ten (10) days prior to the date thereof a copy thereof which shall contain express covenants to the effect: (a) That the Subordinate Mortgage is in all respects unconditionally subject and subordinate to the lien, security interest and assignment evidenced by this Deed of Trust and each term and provision thereof; (b) That if any action or proceeding shall be instituted to foreclose the Subordinate Mortgage (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion W:W 104\1744\DEEDTRSv2.wpd -8- of the Mortgaged property will be named as a party defendant, nor will any action be taken with respect to the Mortgaged Property which would terminate any occupancy or tenancy of the Mortgaged Property without the prior written consent of Beneficiary; (c) That the Rents and Profits, if collected through a receiver or by the holder of the Subordinate Mortgage, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Note and the other indebtedness secured hereby and then to the payment of maintenance, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership,operation and/or maintenance of the Mortgage Property;and (d) That if any action or proceeding shall be brought to foreclose the Subordinate Mortgage, written notice of the commencement thereof will be given to Beneficiary contemporaneously with the commencement of such action or proceeding. 28. Payment of Outstanding Liens. To the extent that proceeds of the Note are used to pay any outstanding liens, charges or encumbrances against or affecting the Mortgaged Property, such proceeds have been advanced by Beneficiary at Grantor's request, and Beneficiary shall be subrogated to all rights, interest and liens owned or held by any owner or holder of such outstanding liens, charges and encumbrances, irrespective of whether such liens, charges or encumbrances are released of record. 29. General Interest and Usury Provisions. (a) Savings Clause. It is expressly stipulated and agreed to be the intent of Grantor and Beneficiary at all times to comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable on the indebtedness evidenced by the Note and the Related Indebtedness (as hereinafter defined) or applicable United States federal law to the extent that it permits Beneficiary to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law. If the applicable law is ever judicially interpreted so as to render usurious any amount (i) contracted for, charged, taken, reserved or received pursuant to the Note, any of the other Loan Documents or any other communication or writing by or between Grantor and Beneficiary related to the transaction or transactions that are the subject matter of the Loan Documents, (ii) contracted for, charged, taken, reserved or received by reason of Beneficiary's exercise of the option to accelerate the maturity of the Note and/or the Related Indebtedness, or (iii) Grantor will have paid or Beneficiary will have received by reason of any voluntary prepayment by Grantor of the Note and/or the Related Indebtedness (as hereinafter defined), then it is Grantor's and Beneficiary's express intent that all amounts charged in excess of the Maximum Lawful Rate shall be automatically canceled, ab initio, and all amounts in excess of the Maximum Lawful Rate theretofore collected by Beneficiary shall be credited on the principal balance of the Note and/or the Related Indebtedness (or, if the Note and all Related Indebtedness have been or would thereby be paid in full, refunded to Grantor), and the provisions of the Note and the other Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable laws, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if the Note has been paid in full before the end of the stated term of the Note, then Grantor and Beneficiary agree that Beneficiary shall, with reasonable promptness after Beneficiary discovers or is advised by Grantor that interest was received in an amount in excess of the Maximum Lawful Rate, either credit such excess interest against the Note and/or any Related Indebtedness then owing by Grantor to Beneficiary and/or refund such excess interest to Grantor. Grantor hereby agrees that as a condition precedent to any claim seeking usury penalties against Beneficiary, Grantor will provide written notice to Beneficiary, advising Beneficiary in reasonable detail of the nature and amount of the violation, and Beneficiary shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to Grantor or crediting such excess interest against the Note and/or the Related Indebtedness then owing by Grantor to Beneficiary. All sums contracted for, charged, taken, reserved or received by Beneficiary for the use, forbearance or detention of any debt evidenced by the Note and/or the Related Indebtedness shall, to the extent permitted by applicable law, be amortized, prorated, allocated or spread, using the actuarial method, throughout the stated term of the Note and/or the Related Indebtedness (including any and all renewal and extension periods) until payment in full so that the rate or amount of interest on account of the Note and/or the Related Indebtedness does not exceed the Maximum Lawful Rate WA4104\I 744\DEEDTRSv2mpd -9- d' i IN1'\ p i from time to time in effect and applicable to the Note and/or the Related Indebtedness for so long as debt is outstanding. In no event shall the provisions of Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan accounts and revolving triparty accounts) apply to the Note and/or any of the Related Indebtedness. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, it is not the intention of Beneficiary to accelerate the maturity of any interest that has not accrued at the time of such acceleration or to collect unearned interest at the time of such acceleration. The terms and provisions of this paragraph shall control and supersede every other term, covenant or provision contained herein, in any other Loan Document or in any other agreement between the Grantor and Beneficiary. (b) Ceiline Election. To the extent that Beneficiary is relying on Chapter 303 of the Texas Finance Code to determine the Maximum Lawful Rate payable on the Note and/or any other portion of the Related Indebtedness, Beneficiary will utilize the weekly ceiling from time to time in effect as provided in such Chapter 303, as amended. To the extent United States federal law permits Beneficiary to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law, Beneficiary will rely on United States federal law instead of such Chapter 303 for the purpose of determining the Maximum Lawful Rate. Additionally, to the extent permitted by applicable law now or hereafter in effect, Beneficiary may, at its option and from time to time, utilize any other method of establishing the Maximum Lawful Rate under such Chapter 303 or under other applicable law by giving notice, if required, to Grantor as provided by such applicable law now or hereafter in effect. (c) Definitions. (i) As used herein,the term "Maximum Lawful Rate" shall mean the maximum lawful rate of interest which may be contracted for, charged, taken, received or reserved by Beneficiary in accordance with the applicable laws of the State of Texas (or applicable United States federal law to the extent that such law permits Beneficiary to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law), taking into account all Charges made in connection with the transaction evidenced by the Note and the other Loan Documents. (ii) As used herein, the term "Charges" shall mean all fees, charges and/or any other things of value, if any, contracted for, charged, taken, received or reserved by Beneficiary in connection with the transactions relating to the Note and the other Loan Documents,which are treated as interest under applicable law. (iii) As used herein, the term "Related Indebtedness" shall mean any and all indebtedness paid or payable by Grantor to Beneficiary pursuant to the Loan Documents or any other communication or writing by or between Grantor and Beneficiary related to the transaction or transactions that are the subject matter of the Loan Documents, except such indebtedness which has been paid or is payable by Grantor to Beneficiary under the Note. 30. No Subseauent Waiver. No waiver of any default on the part of Grantor or breach of any of the provisions of this Deed of Trust or of any other instrument executed in connection with the indebtedness secured hereby shall be considered a waiver of any other or subsequent default or breach, and no delay or omission in exercising or enforcing the rights and powers herein granted shall be construed as a waiver of such rights and powers, and likewise no exercise or enforcement of any rights or powers hereunder shall be held to exhaust such rights and powers, and every such right and power may be exercised from time to time. If any provision of this Deed of Trust is held to be illegal, invalid, or unenforceable under present or future laws effective while this Deed of Trust is in effect, the legality, validity, and enforceability of the remaining provisions of this Deed of Trust shall not be affected thereby, and in lieu of each such illegal, invalid, or unenforceable provision there shall be added automatically as a part of this Deed of Trust a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. If any of the liens, security interest or assignment of rents created by this Deed of Trust shall be invalid or unenforceable, the unsecured portion of the indebtedness shall be completely paid prior to the payment of the remaining and secured portion of such indebtedness and all payments made on account of such indebtedness shall be considered to have been paid on and applied first to the complete payment of the unsecured portion of such indebtedness. W:W 104\1744\DEEDTRSQ.wpd - 10- --- J J U l 31.(a) Security Agreement. With respect to any of the Collateral governed by the Uniform Commercial Code of the State of Texas (hereinafter called the "Code"), this Deed of Trust shall constitute a security agreement between Grantor as the debtor and Beneficiary as the secured party, and Grantor hereby grants to Beneficiary a security interest in such portion of the Mortgaged Property. Cumulative of all other rights of Beneficiary hereunder, Beneficiary shall have all of the rights conferred upon secured parties by the Code. Grantor will execute and deliver to Beneficiary all financing statements that may from time to time be required by Beneficiary to establish and maintain the validity and priority of the security interest of Beneficiary,or any modification thereof, and shall bear all costs and expenses of any searches reasonably required by Beneficiary. Beneficiary may exercise any or all of the remedies of a secured party available to it under the Code with respect to such property, and it is expressly agreed that if upon default Beneficiary should proceed to dispose of such property in accordance with the provisions of the Code, then five (5) days' notice by Beneficiary to Grantor shall be deemed to be reasonable notice under any provision of the Code requiring such notice; provided, however, that Beneficiary may at its option dispose.of such property in accordance with Beneficiary's rights and remedies with respect to the real property pursuant to the provisions of this Deed of Trust, in lieu of proceeding under the Code. Additionally, but not in lieu of any other rights held by Beneficiary, Beneficiary may offset against any accounts or sums of Grantor held by Beneficiary up to the full amount of the indebtedness secured hereby, as the same becomes due. (b) Notice of Name, Etc Grantor shall give advance notice in writing to Beneficiary of any proposed change in Grantor's name, identity, or structure, and will execute and deliver to Beneficiary, prior to or concurrently with the occurrence of any such change, all additional financing statements that Beneficiary may require to establish and maintain the validity and priority of Beneficiary's security interest with respect to any Mortgaged Property described or referred to herein. (c) Fixtures. Should some of the items of Mortgaged Property described herein be goods that are or are to become fixtures related to the real estate described herein, it is intended that, as to any such goods, this Deed of Trust shall be effective as a financing statement filed as a fixture filing from the date of its filing for record in the real estate records of the county in which the Mortgaged Property is situated. Information concerning the security interest created by this instrument may be obtained from Beneficiary, as secured party, at the address of Beneficiary stated above. The mailing address of the Grantor,as debtor,is as stated above. 32. Corporate Existence. Grantor, if a corporation, agrees that as long as it is the owner of the Mortgaged Property, it will do all things necessary to preserve and keep in full force and effect its existence, franchises, rights and privileges as a business or stock corporation under the laws of the state of its incorporation. 33. Successors and Assigns. The covenants herein contained shall bind, and the benefits and advantages shall inure to, the respective heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto, and to any substitute Trustee. Whenever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. The term "Grantor" shall include in their individual capacities, and jointly, all parties hereinabove named as Grantor. The term "Beneficiary" shall also include any lawful owner, holder, pledgee or assignee of any indebtedness secured hereby. The duties, covenants, conditions, obligations and warranties of Grantor in this Deed of Trust shall be joint and several obligations of Grantor and each Grantor if more than one, and Grantor's heirs, personal representatives, successors and assigns. Each party who executes this Deed of Trust (other than Beneficiary), and each subsequent owner of the Mortgaged Property, or any part thereof, covenants and agrees that it will perform, or cause to be performed, each condition, term, provision, and covenant of this Deed of Trust. 34. Comnliance with Ground Lease,and Regulations. Grantor warrants, covenants and agrees to comply with and fully satisfy its duties and obligations under the Ground Lease and any sublease thereof, to keep said subleases and Ground Lease in full force and effect and free from default, and to otherwise comply with all of the rules or regulations, governmental, public or private, applicable to the Mortgaged Property and Grantor's operation thereof, including without limitation all restrictions;restrictive covenants;condominium by-laws,regimes and declarations. WA4 I GA 1744\DEEDTRSv2.wpd (l �' i 35. Texas Law. This instrument is executed in Texas and shall be governed by and construed in accordance with the laws of the State of Texas, except to the extent such laws have been preempted by Federal laws, in which case federal laws as applied in Texas shall govern. 36. Construction MortEaae. This Deed of Trust is also a Construction Mortgage under Article 9 of the Texas Business and Commerce Code. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK-SIGNATURE PAGE(S)FOLLOW J WM104\1744\DHHDTRSv2.wpd - 12- EXECUTED to be effective as of(although not necessarily on)November ,2003. GRANTOR MEACHAM DEVELOPMENT LLC, a Texas limit iability comp py ' I By: ]Robert M.McMurrey, ag STATE OF TEXAS § COUNTY OF § The foregoing instrument was acknowledged before me on the day of _ , 2003, by Robert M. McMurrey, Manager of Meacham Development LLC, a Texas limited liability company, on behalf of such company for the purposes therein expressed. Notary Public,State of Texas [SEAL] WA4104\I 744\0EEDTRSv2.wpd - 13- - -• �. - -__— _ EXHIBIT PROPERTY DESCRIPTION TO BE ATTACHED WA4104\1 7440EEDTRSv2..pd - 14- City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 12/9/2003 DATE: Tuesday, December 09, 2003 LOG NAME: 55MEACHAM REFERENCE NO.: **L-13720 SUBJECT: Consent to Execution of Deed of Trust Lien by Meacham Development, LLC in Favor of Legacy Bank of Texas Related to Lease Sites at Fort Worth Meacham International Airport RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a written consent to the execution of a Deed of Trust Lien by Meacham Development, LLC (Meacham Development) in favor of Legacy Bank of Texas on Meacham Development's leasehold at Fort Worth Meacham International Airport (Airport). DISCUSSION: Meacham Development currently leases Lease Site Nos. 5-N, 6-N, 7-N, 8-N, 9-N and 10-N (Leased Premises) at the Airport pursuant to City Secretary Contract No. 29135 (the Lease). Under the Lease, Meacham Development is required to demolish the deteriorating hangars currently on the Leased Premises and, in their place, to construct two (2) 21,976 square foot aircraft hangars; 4,020 square feet of shop space; and 14,520 square feet of office space. Meacham Development wishes to obtain financing for this project from Legacy Bank of Texas (Bank). Accordingly, Meacham Development has requested the City's consent to its execution of a Deed of Trust Lien on the Leased Premises in order for the Bank to secure its loan. The Deed of Trust Lien will grant the Bank the right to operate as the Lessee or to secure another tenant in place of Meacham Development, if approved by the City Council, in the event that Meacham Development defaults under the loan or breaches its Lease with the City. The Lease prohibits Meacham Development from making any assignment of the Lease or causing any lien to be made'on improvements constructed on the Leased Premises without City Council approval. This type of transaction is routine for large airport tenants, and City staff does not have any objections to Meacham Development's request. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action will have no material effect on City funds. TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for City Manager's Office by: Marc Ott (8476) Originating Department Head: Mike Feeley (Acting) (5403) Additional Information Contact: Mike Feeley (Acting) (5403) Peter Vaky (760 1) Logname: 55MEACHAM Page 1 of 1